Negligent infliction of emotional distress
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The tort of negligent infliction of emotional distress (NIED) is a controversial cause of action, which is available in nearly all U.S. states but is severely constrained and limited in the majority of them. The underlying concept is that one has a legal duty to use reasonable care to avoid causing emotional distress to another individual. If one fails in this duty and unreasonably causes emotional distress to another person, that actor will be liable for monetary damages to the injured individual. The tort is to be contrasted with intentional infliction of emotional distress in that there is no need to prove intent to inflict distress. That is, an accidental infliction, if negligent, is sufficient to support a cause of action.
Contents  [hide]
1 History
2 Criticisms of the tort
3 References
4 External links
History [edit]

NIED began to develop in the late nineteenth century, but only in a very limited form, in the sense that plaintiffs could recover for consequential emotional distress as a component of damages when a defendant negligently inflicted physical harm upon them. By 1908, most industrial U.S. states had adopted the "physical impact" form of NIED. However, NIED started developing into its more mature and more controversial form in the mid-20th century, as the new machines of the Second Industrial Revolution flooded the legal system with all kinds of previously unimaginable complex factual scenarios. Courts began to allow plaintiffs to recover for emotional distress resulting from negligent physical injuries to not only themselves, but other persons with whom they had a special relationship, like a relative. The first step, then, was to remove the requirement of physical injury to the actual plaintiff while keeping the requirement of physical injury to someone. In the 1968 landmark decision of Dillon v. Legg, the Supreme Court of California was the first court to allow recovery for emotional distress alone – even in the absence of any physical injury to the plaintiff – in the particular situation where the plaintiff simply witnessed the death of a close relative at a distance, and was not within the "zone of danger" where the relative was killed.[1] A 2007 statistical study commissioned by the Court found that Dillon was the most persuasive decision published by the Court between 1940 and 2005; Dillon has been favorably cited and followed by at least twenty reported out-of-state appellate decisions, more than any other California appellate decision.[2]
The next step after Dillon was to make optional the element of another person (so that the injury could be to anything where it would be reasonably foreseeable that such injury would cause some person emotional distress). The first such case was Rodrigues v. State,[3] in which the Supreme Court of Hawaii held that plaintiffs could recover for negligent infliction of emotional distress as a result of negligently caused flood damage to their home. This is generally considered to be the true birth of NIED as a separate tort.
Twelve years after Dillon, California expanded NIED again, by holding that a relative could recover even where the underlying physical injury was de minimis (unnecessary medications and medical tests) if the outcome was foreseeable (the breakup of the plaintiffs' marriage as a result of the defendants' negligent and incorrect diagnosis of a sexually transmitted disease).[4]
In 1994, the U.S. Supreme Court for the first time recognized NIED as part of federal common law, by holding that railroad workers could pursue NIED claims against their employers under the Federal Employers Liability Act.[5] The Court recognized only the pre-Dillon form of NIED, though, in that the plaintiff had to be within a zone of danger to recover in the absence of physical injury.
In 1999, Hawaii took NIED even further by expressly holding that "damages may be based solely upon serious emotional distress, even absent proof of a predicate physical injury."[6]
Criticisms of the tort [edit]

The tort is generally disfavored by most states because it appears to have no definable parameters and the potential claims that can be made under the theory are wide open. It is difficult to define what situations would give rise to such a claim, and what situations would not. Because of this substantial uncertainty, most legal theorists find the theory to be unworkable in practice.
A corollary of this critique is that the tort runs the risk (in the bystander NIED context) of overcompensating plaintiffs for distress which would have occurred anyway regardless of the cause of death of the decedent. In a landmark decision of the Supreme Court of California which severely limited the availability of bystander NIED, Associate Justice David Eagleson wrote in Thing v. La Chusa, 48 Cal. 3d 644 (1989):
“ No policy supports extension of the right to recover for NIED to a larger class of plaintiffs. Emotional distress is an intangible condition experienced by most persons, even absent negligence, at some time during their lives. Close relatives suffer serious, even debilitating, emotional reactions to the injury, death, serious illness, and evident suffering of loved ones. These reactions occur regardless of the cause of the loved one's illness, injury, or death. That relatives will have severe emotional distress is an unavoidable aspect of the 'human condition.' The emotional distress for which monetary damages may be recovered, however, ought not to be that form of acute emotional distress or the transient emotional reaction to the occasional gruesome or horrible incident to which every person may potentially be exposed in an industrial and sometimes violent society. . . . The overwhelming majority of 'emotional distress' which we endure, therefore, is not compensable.[7] ”
An additional criticism of the tort is that it leads to abuse of liability insurance coverage. Most liability insurance policies provide for coverage of negligently inflicted injuries but exclude coverage of intentionally inflicted injuries. If a victim is intentionally injured by a person, many theorists perceive that the victim will tend to recast the claim as being one for negligence in order to fall within the coverage of the insurance policy.
The Texas case of Boyles v. Kerr, 855 S.W.2d 593 (Tex. 1993) is illustrative. In this case, the defendant secretly videotaped himself engaging in sexual activities with the plaintiff. The defendant then showed this videotape to numerous individuals and caused severe distress to the plaintiff. The plaintiff brought suit against the defendant, asserting a claim for negligent infliction of emotional distress.
On appeal, the Supreme Court of Texas observed that the facts did not support a claim of negligence. Rather, the Court noted, the facts clearly supported a claim of an intentional injury by the defendant and it was evident that the claim had been cast as "negligence" solely to obtain insurance coverage. The Court then went on to hold that Texas did not recognize a claim for negligent infliction of emotional distress and remanded the case to the trial court for consideration of a claim for intentional infliction of emotional distress.
Jurisdictions that have rejected the claim of negligent infliction of emotional distress do not forbid the recovery of damages for mental injuries. Instead, these jurisdictions usually allow recovery for emotional distress where such distress:
is inflicted intentionally (i.e., intentional infliction of emotional distress)
is directly associated with a physical injury negligently inflicted upon a victim (e.g., emotional distress resulting from a loss of limb or disfigurement of the face)
is caused by defamation and libel;
stems from witnessing a gruesome accident as a bystander
is the product of some misconduct universally recognized as causing emotional distress such as mishandling a loved one’s corpse or failing to deliver a death notice in a timely manner.
References [edit]

^ See Dillon v. Legg, 68 Cal. 2d 728 (1968).
^ Jake Dear and Edward W. Jessen, " Followed Rates" and Leading State Cases, 1940-2005, 41 U.C. Davis L. Rev. 683, 694(2007).
^ 52 Haw. 156, 472 P.2d 509 (1970).
^ See Molien v. Kaiser Foundation Hospitals, 27 Cal. 3d 916 (1980).
^ Consolidated Rail Corp. v. Gottshall, 512 U.S. 532 (1994).
^ Roes v. FHP, Inc., 91 Haw. 470, 985 P.2d 661 (1999).
^ Thing v. La Chusa, 48 Cal. 3d 644, 666-667 (1989).
External links [edit]

LawSchoolHelp.com article on infliction of emotional distress.

Rule Against Perpetuities

Terms: Rule Against Perpetuities: The rule that provides that certain future interests must vest, if at all, within 21 years after the death of a life in being at the time that the interest is created.

Of all the rules that have developed with regard to limiting the ability to transfer property, the one with the strongest ramifications today is the Rule Against Perpetuities. Although this rule’s ramifications are most significant when it comes to drafting trusts (which will be a major subject in the course on Wills, Trusts and Estates), we will discuss it in this section because it developed as a property rule. Unfortunately, the Rule Against Perpetuities is also quite complicated. We will try to break it down into terms that are as simple as possible. Simply stated, the Rule Against Perpetuities states that certain interests in property must vest, if at all, within 21 years after the death of a life in being at the time that the interest was created. The purpose of the rule is to prevent a person from drafting any kind of transfer agreement that could control the destiny of the land he is giving up fifty or sixty or a hundred or two hundred years after he is gone. In essence, the law seeks to prevent dynastic property whose transfer is restricted by the wishes of someone who has been dead for hundreds of years. The rule applies to executory interests and contingent remainders. Interests that the grantor keeps (such as reversions and rights of re-entry) are exempt from the rule because, since the grantor is keeping the interest anyway, there is no reason he should not be able to control it (he could have controlled it without giving it away anyway). The way to analyze whether a conveyance violates the Rule Against Perpetuities without having to think about all the convoluted policies that are behind it is to follow the following steps: 1) Determine whether there is a future interest involved in the conveyance that falls under the rule (contingent remainder or executory interest). 2) If there is such a future interest, is there any limitation on when the person holding that interest can actually get the property? If there is no such limitation (it can vest any time between now and eternity), the conveyance violates the rule and it is void. 3) If there is a limitation, determine which person or people are relevant in deciding when the future interest vests. These people are called the “measuring lives.” 4) Finally, determine whether it is possible that the interest vests more than 21 years after the deaths of all of the people who are currently alive and who are relevant to the vesting of the future interest. Let’s look at some examples: 1) Batman conveys the batcave “to Alfred for life and then to Robin.” This does not violate the Rule Against Perpetuities because it is a vested remainder, not a contingent remainder. The Rule Against Perpetuities does not apply to vested remainders. 2) Batman conveys the batcave “to Alfred for life and then to the oldest of Robin’s children.” This is a contingent remainder, but it is valid under the Rule Against Perpetuities. Think about the latest time that the interest can vest. That would be the time that Alfred dies (in fact, it’s the only time that the interest can vest). Thus, it is impossible for the interest to vest more than 21 years after Alfred’s death and so the conveyance is valid. 3) Batman conveys the batcave “to Alfred for life and then to the oldest of Robin’s children when he or she reaches 30 years old". Is it possible for this interest to vest more than 21 years after the death of everyone involved in the conveyance? Yes, it is. How? All of Robin’s children could die and Robin could have another child. Alfred could then die when that child is one year old. Thus, the interest would not actually vest in Robin’s oldest child until 29 years after the death of Alfred. Since no other person is relevant in determining when the interest vests, Alfred is the measuring life. Since the interest could vest more than 21 years after his death, the conveyance is not valid. See White v. Hayes, 2003 Tenn. App. LEXIS 683.  4) Batman conveys the batcave “to Robin, so long as the batcave is not used as a bar or restaurant.” The future interest involved here is in the grantor (it is a possibility of reverter). Thus, the Rule Against Perpetuities does not apply. So, even though Robin’s great great grandchild could forfeit the batcave by turning it into a restaurant, the conveyance is valid. 5) Batman conveys the batcave “to Robin, so long as the batcave is not used as a bar or restaurant, and then to Riddler. Riddler has an executory interest. Thus the Rule Against Perpetuities applies. Is it possible for the interest to vest more than 21 years after the death of everyone involved? Sure! Riddler’s interest could vest when Robin’s descendant, 500 years later, turns the batcave into a restaurant. Obviously Riddler would not be around to take the batcave, but his descendants would be able to. Thus, the conveyance is not valid. The Rule Against Perpetuities sometimes leads to absurd results because it assumes that even the most unlikely of scenarios are possible in making the Rule Against Perpetuities determination. For example, the Rule Against Perpetuities assumes that a woman can always have another child. For example: Marge is 80 years old. She has three children, Bart, Lisa and Maggie, who are each in their 50s. Homer conveys a house “to Marge for life and then to the oldest of Marge’s children who survive her when he or she reaches the age of 30.” This conveyance violates the rule. Why? Because it is possible that the interest will not vest in anyone involved who is alive today. How? Bart, Lisa and Maggie could all die tomorrow and then Marge could have another child and then die. Then the interest would not vest until almost 30 years after the deaths of Marge and all her children, who are the measuring lives. Obviously, this scenario is almost impossible, primarily because Marge will not have a child at age 80. Nevertheless, the rule is violated because the law considers anything possible. This aspect of the rule is wittily known as the “fertile octogenarian rule.” Note, however, that many states have made modifications to the Rule Against Perpetuities, mostly with an eye toward avoiding absurd results. For example, many states now drop the assumption that a woman can always have another child for any woman above the age of 55. There are many more complicated permutations that can arise from this rule, and we will discuss the rule again in the Wills and Trusts course. For now, just try to use the following flow chart to determine whether or not a conveyance violates the Rule Against Perpetuities. http://nationalparalegal.edu/public_documents/courseware_asp_files/realProperty/EstateSystem/RuleAgainstPerpetuities.asp

Motion (legal)

From Wikipedia, the free encyclopedia

The examples and perspective in this article deal primarily with the United States and do not represent a worldwide view of the subject. Please improve this article and discuss the issue on the talk page. (June 2012)

For other uses, see Motion (disambiguation).

In United States law, a motion is a procedural device to bring a limited, contested issue before a court for decision. It is a request to the judge (or judges) to make a decision about the case.^[1] Motions may be made at any point in administrative, criminal or civil proceedings, although that right is regulated by court rules which vary from place to place. The party requesting the motion may be called the movant, or may simply be the moving party. The party opposing the motion is the nonmovant or nonmoving party.

Contents   [hide]  1 How motions are made 2 Types of motions 2.1 U.S. federal courts 2.1.1 Motion to dismiss 2.1.2 Motion for summary judgment 2.1.3 Motion in limine 2.1.4 Motion for a directed verdict 2.1.5 Motion for judgment n.o.v. 2.1.6 Motion for new trial 2.1.7 Motion to set aside judgment 2.1.8 Motion for nolle prosequi 2.1.9 Motion to compel 3 References 4 See also

How motions are made [edit]

Motions may be made in the form of an oral request in open court, which is then summarily granted or denied orally. But today, most motions (especially on dispositive issues that could decide the entire case) are decided after oral argument preceded by the filing and service of legal papers. That is, the movant is usually required to serve advance written notice along with some kind of written legal argument justifying the motion. The legal argument may come in the form of a memorandum of points and authorities supported by affidavits or declarations. Some northeastern U.S. states have a tradition in which the legal argument comes in the form of an affidavit from the attorney, speaking personally as himself on behalf of his client. In contrast, in most U.S. states, the memorandum is written impersonally or as if the client were speaking directly to the court, and the attorney reserves declarations of his own personal knowledge to a separate declaration or affidavit (which are then cited to in the memorandum). One U.S. state, Missouri, uses the term "suggestions" for the memorandum of points and authorities.

Either way, the nonmovant usually has the opportunity to file and serve opposition papers. Most jurisdictions allow for time for the movant to file reply papers rebutting the points made in the opposition.

Customs vary widely as to whether oral argument is optional or mandatory once briefing in writing is complete. Some courts issue tentative rulings (after which the loser may demand oral argument) while others do not. Depending upon the type of motion and the jurisdiction, the court may simply issue an oral decision from the bench (possibly accompanied by a request to the winner to draft an order for its signature reducing the salient points to writing), take the matter under submission and draft a lengthy written decision and order, or simply fill out a standard court form with check boxes for different outcomes. The court may serve all parties directly with its decision or may serve only the winner and order the winner to serve everyone else in the case.

Types of motions [edit]

U.S. federal courts [edit]

Civil procedure in the United States
Federal Rules of Civil Procedure Doctrines of civil procedure Jurisdiction Subject-matter jurisdiction Diversity jurisdiction Personal jurisdiction Removal jurisdiction Venue Change of venue Forum non conveniens Pleadings Service of process Complaint Cause of action Case Information Statement Class action Class Action Fairness Act of 2005 Demurrer Answer Affirmative defense Reply Counterclaim Crossclaim Joinder Indispensable party Impleader Interpleader Intervention Other Motions Pre-trial procedure Discovery Initial Conference Interrogatories Depositions Request for admissions Request for production Resolution without trial Default judgment Summary judgment Voluntary dismissal Involuntary dismissal Settlement Trial Parties Plaintiff Defendant Pro Se Jury Voir dire Burden of proof Judgment Judgment as a matter of law (JMOL) Renewed JMOL (JNOV) Motion to set aside judgment New trial Remedy Injunction Damages Attorney's fee American rule English rule Declaratory judgment Appeal Mandamus Certiorari
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Motion to dismiss [edit]

A "motion to dismiss" asks the court to decide that a claim, even if true as stated, is not one for which the law offers a legal remedy. As an example, a claim that the defendant failed to greet the plaintiff while passing the latter on the street, insofar as no legal duty to do so may exist, would be dismissed for failure to state a valid claim: the court must assume the truth of the factual allegations, but may hold that the claim states no cause of action under the applicable substantive law. A claim that has been presented after the statute of limitations has expired is also subject to dismissal. If granted, the claim is dismissed without any evidence being presented by the other side. A motion to dismiss has taken the place of the common law demurrer in most modern civil practice. When a court dismisses a case, many lay persons state the case was "thrown out."

Under Rule 12 of the Federal Rules of Criminal Procedure, a party may raise by motion any defense, objection, or request that the court can determine without a trial of the general issue. Before the trial starts, the motions can be based on defects in instituting the prosecution, defects in the indictment or information (which can be challenged at any stage but are generally raised before a trial begins). Pleadings in a federal criminal trial are pleadings in a criminal proceeding are the indictment, the information, and the pleas of not guilty, guilty, and nolo contendere. A motion under Rule 14 can address the statement of the charges (or individual specifications, see below) or the defendants. In these instances, the motion to dismiss is characterized as a "motion to sever charges or defendants."

Under Rule 907, (Rules for Courts-Martial [1]), a motion to dismiss is a request to terminate further proceedings on one or more criminal charges and specifications on grounds capable of resolution without trial of the general issue of guilt. A motion may be based on nonwaivable grounds (e.g. lack of jurisdiction or the failure to state an offense) and/or waivable grounds (denial of a right to a speedy trial, statute of limitation, double jeopardy meaning a person has been previously tried by court-martial or federal civilian court for the same offense, pardon or grant of immunity). Specifications are sometimes referred to as 'counts' or separate instances of a particular offense which are connected to specific factual evidence. A motion may seek to dismiss these specifications, especially if it is so defective it substantially misled the accused, or it is multiplicious.

Multiplicity, also known as allied offenses of similar import, is the situation where two or more allegations allege the same offense, or a situation where one defined offense necessarily includes another. A counts may also be multiplicious if two or more describe substantially the same misconduct in different ways. For example, assault and disorderly conduct may be multiplicious if facts and evidence presented at trial prove that the disorderly conduct consists solely of the assault. That is to say, if all the elements contained in one are all in another they are allied offenses of similar import.

Discovery motions relate to the necessary exchange of information between the parties. In the common law system, these motions capture an irreducible tension in the legal system between the right of discovery and a duty to disclose information to another.

There are numerous practical differences between the discovery expectations and practices in civil and criminal proceedings. The local rules of many courts clarify expectations with respect to civil discovery, in part because these are often poorly understood or are abused as part of a trial strategy. As a result, civil discovery rules pertain to discretionary discovery practices and much of the argument in this respect centers on the proper definition of the scope of the parties requests. Because criminal prosecutions generally implicate a well-defined constitutional guarantee, criminal discovery is much more focused on automatic disclosure principles, which if found to be violated, will trigger the dismissal of the charges.

Rules 7.1 and 26-37 of the Federal Rules of Civil Procedure, are often cited in combination with a specific local rule to form a basis for a civil discovery motion.

Rule 16, Federal Rules of Criminal Procedure, is the basis for a criminal discovery motion. Rule 906(b)(7), Rules for Courts-Martial a variety of a "motion for appropriate relief" is used as a military law basis for discovery.

Motion for summary judgment [edit]

A "motion for summary judgment" asks the court to decide that the available evidence, even if taken in the light most favorable to the non-moving party, supports a ruling in favor of the moving party. This motion is usually only made when sufficient time for discovering all evidence has expired. For summary judgment to be granted in most jurisdictions, a two-part standard must be satisfied: (i) no genuine issue of material fact can be in dispute between the parties, and (ii) the moving party must be entitled to judgment as a matter of law. For example, a claim that a doctor engaged in malpractice by prescribing a drug could result in summary judgment if the plaintiff failed to obtain expert testimony indicating that the drug was improperly prescribed. Motions to dismiss and motions for summary judgment are types of dispositive motions.

Rule 56, Federal Rules of Civil Procedure, is the rule which explains the mechanics of a summary judgment motion. As explained in the notes to this rule, summary judgment procedure is a method for promptly disposing of actions in which there is no genuine issue as to any material fact. Prior to its introduction in the US in 1934, it was used in England for more than 50 years.

In England motions for summary judgments were used only in cases of liquidated claims, there followed a steady enlargement of the scope of the remedy until it was used in actions to recover land or chattels and in all other actions at law, for liquidated or unliquidated claims, except for a few designated torts and breach of promise of marriage. English Rules Under the Judicature Act (The Annual Practice, 1937) O. 3, r. 6; Orders 14, 14A, and 15; see also O. 32, r. 6, authorizing an application for judgment at any time upon admissions. New York was a leader in the adoption of this rule in the US and the success of the method helps account for its current importance as an almost indispensable tool in administrative actions (especially before the Equal Employment Opportunity Commission which adjudicates employment discrimination claims and the Merit Systems Protection Board which adjudicates federal employment matters).^[2]

The Civil Litigation Management Manual published by the US Judicial Conference directs that these motions be filed at the optimum time and warns that premature motions can be a waste of time and effort. The significant resources needed to prepare and defend against such motions is a major factor which influences litigants to use them extensively. In many cases, particularly from the defendant's (or defense) perspective, accurate or realistic estimates of the costs and risks of an actual trial are made only after a motion has been denied. Overbroad motions for summary judgment are sometimes designed (again generally by the defense) to make the opponent rehearse their case before trial.

Most summary judgment motions must be filed in accordance with specific rules relating to the content and quality of the information presented to the judge. Among other things, most motions for summary judgment will require or include: page limits on submissions by counsel; an instruction to state disputed issues of fact up front; an instruction to state whether there is a governing case; an instruction that all summary judgment motions be accompanied by electronic versions (on a CD-R or DVD-R), in a chambers-compatible format that includes full pinpoint citations and complete deposition and affidavit excerpts to aid in opinion preparation; an instruction that all exhibits submitted conform to specific physical characteristics (i.e. be tabbed with letters or numbers, that pages be sequentially numbered or "Bates-stamped"); an instruction that citations to deposition or affidavit testimony must include the appropriate page or paragraph numbers and that citations to other documents or materials must include pinpoint citations. Many judges also ask the parties to prepare form orders with a brief statements of law to help the judge write the decision. A judge generally issues a tentative ruling on the submitted pleadings, and counsel will be offered an opportunity to respond in a later oral argument. Alternatively, a judge may grant requests for argument in a preargument order which specifies what points will be discussed prior to a decision.

Motion in limine [edit]

A "motion in limine" asks the court to decide that certain evidence may or may not be presented to the jury at the trial. A motion in limine generally addresses issues which would be prejudicial for the jury to hear in open court, even if the other side makes a timely objection which is sustained, and the judge instructs the jury to disregard the evidence. For example, the defendant may ask the court to rule that evidence of a prior conviction that occurred a long time ago should not be allowed into evidence at the trial because it would be more prejudicial than probative. If the motion is granted, then evidence regarding the conviction could not be mentioned in front of the jury, without first approaching the judge outside of the hearing of the jury and obtaining permission. The violation of a motion in limine can result in the court declaring a mistrial.

There are three types of Motions in Limine 1. Inclusionary - A motion asking the court to have something included in the trial. 2. Exclusionary - A motion asking the court to have something excluded in the trial. 3. Preclusionary - A motion asking the court to have something precluded in the trial

Motion for a directed verdict [edit]

A "motion for a directed verdict" asks the court to rule that the plaintiff or prosecutor has not proven the case, and there is no need for the defense to attempt to present evidence. This motion is made after the plaintiff has rested its case, and prior to the defense presenting any evidence. If granted, the court would dismiss the case.

Motion for judgment n.o.v. [edit]

A "motion for judgment n.o.v." (non obstante veredicto, or notwithstanding the verdict) asks the court to reverse the jury's verdict on the grounds that the jury could not reasonably have reached such a verdict. This motion is made after the jury's verdict. If granted, the court enters a new verdict. This motion can be used in a civil case only to reverse a guilty verdict; not guilty verdicts are immune to reversal by the court.

Under Rule 50, Federal Rules of Civil Procedure, the motion for directed verdict and JNOV have been replaced by the motion for judgment as a matter of law (JAMOL), which can be made at the close of the opposing party's evidence and "renewed" after return of the verdict (or after the dismissal of a hung jury).

Under Rule 29, Federal Rules of Criminal Procedure the "motion for a judgment of acquittal," or Rule 917, Rules for Courts-Martial the "motion for a finding of not guilty," if the evidence presented by the prosecution is insufficient to support a rational finding of guilty, there is no reason to submit the issue to a jury.

Motion for new trial [edit]

A motion for new trial asks to overturn or set aside a court's decision or jury verdict. Such a motion is proposed by a party who is dissatisfied with the end result of a case. This motion must be based on some vital error in the court's handling of the trial, such as the admission or exclusion of key evidence, or an incorrect instruction to the jury. Generally the motion is filed within a short time after the trial (7–30 days) and is decided prior to the lodging of an appeal. In some jurisdictions, a motion for new trial which is not ruled upon by a set period of time automatically is deemed to be denied.

Motion to set aside judgment [edit]

A "motion to set aside judgment" asks the court to vacate or nullify a judgment and/or verdict. Motions may be made at any time after entry of judgment, and in some circumstances years after the case has been closed by the courts. Generally the grounds for the motion cannot be ones which were previously considered when deciding a motion for new trial or on an appeal of the judgment.

Motion for nolle prosequi [edit]

A "motion for nolle prosequi" ("not prosecuting") is a motion by a prosecutor or other plaintiff to drop legal charges. n. Latin for "we do not wish to prosecute," which is a declaration made to the judge by a prosecutor in a criminal case (or by a plaintiff in a civil lawsuit) either before or during trial, meaning the case against the defendant is being dropped. The statement is an admission that the charges cannot be proved, that evidence has demonstrated either innocence or a fatal flaw in the prosecution's claim, or the district attorney has become convinced the accused is innocent.

Motion to compel [edit]

A "motion to compel" asks the court to order either the opposing party or a third party to take some action. This sort of motion most commonly deals with discovery disputes, when a party who has propounded discovery to either the opposing party or a third party believes that the discovery responses are insufficient. The motion to compel is used to ask the court to order the non-complying party to produce the documentation or information requested, and/or to sanction the non-complying party for their failure to comply with the discovery requests.

References [edit]

1. ^ "an application made to a court or judge to obtain an order, ruling, or direction" from: http://research.lawyers.com/glossary/motion.html "Based on Merriam-Webster's Dictionary of Law ©2001"
2. ^ Clark and Samenow, The Summary Judgment (1929), 38 Yale L.J. 423.

See also [edit]

• Pleading
• Motion for leave
• Dispositive motion
• Judgment

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